Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: consultation analysis

Interpretive provision relating to characteristic of sex

The consultation asked consultees if they were content with the interpretive provision contained in the draft SSI relating to the characteristic of sex.

There were 356 responses to this question of which 326 were from individual respondents and 30 were from organisations. Of these, 304 (85%) stated they were content with the provision and 52 (15%) stated that they were not.

There was a significant divergence between the responses of organisations and individuals to this question. The great majority (88%) of individual respondents who answered this question were content with the provision contained in the draft SSI.

Of the organisations which responded to this question, there was a relatively even split between those organisations which were content with the provision (53%) and those which were not (47%).

Organisation respondents

29 of the 30 organisations who responded to this question provided comments setting out the reasons for the position they had taken.

Many of these comments directly referenced the decision of the Supreme Court in the case of For Women Scotland v. The Scottish Ministers on the meaning of the term “sex” in the Equality Act 2010. A number of those organisations which were content with the interpretive provision specifically welcomed the fact that the definition was consistent with the definition of ‘sex’ in the Equality Act 2010. A number referred to the fact that there is separate provision in the 2021 Act in relation to transgender identity and thought it was important that the characteristics of ‘sex’ and ‘transgender identity’ were defined in such a way as to ensure that they were treated as distinct. A small number of respondents who supported the approach to the definition specifically noted that it is the perception of the perpetrator and not the identity or characteristics of the victim which determine whether an offence is aggravated.

Around half of those organisations which were not content with the interpretive provision stated that the Supreme Court’s ruling was limited to the meaning of “sex” in the Equality Act 2010 and that there is no requirement for any SSI adding the characteristic of sex to the 2021 Act to adopt the definition for other purposes. Some of those who raised this issue expressed concern that the decision to do so could be seen as setting a precedent as to the meaning of the term in all contexts, while a small number used their consultation response to argue against the Supreme Court’s decision in that case on its own terms.

A number of respondents argued that the interpretive provision sought to make an artificial distinction between the concepts of gender or gender identity and sex when, in the view of these consultees, they are intrinsically linked. These consultees argued that it was not possible to distinguish between hatred or prejudice based on a person’s sex or their gender. Two organisations specifically raised concerns about the use of the term ‘biological sex’ in the provision, which they regarded as not being a term with a clear scientific meaning and one which they said was used mainly by people opposed to transgender rights.

A small number of respondents had concerns that the interpretive provision conflicted with, or risked interfering with, other provisions in the 2021 Act. They argued that because the interpretive provision is premised on the idea that everyone is of one of two sexes, it conflicts with the characteristic of ‘variations in sex characteristics’. They also argued that there is a risk that the interpretive provision could be used to define the meaning of ‘sex’ in the context of the definition of the characteristic of ‘sexual orientation’. They note that the term is not defined in that context and that the courts may therefore read the meaning of ‘sex’ provided for in the interpretive provision into that definition, meaning that sexual orientation would be read as applying exclusively to attraction to people based on their birth sex, irrespective of how the victim of an offence may define their sexuality.

Two organisations who were generally supportive of the approach taken to the draft interpretive provision were critical of the language used in the explanatory note to the draft SSI, which referred to “sex assigned at birth”. They suggest that it is a person’s sex at birth, and not the sex which they are assigned at birth, which should be referred to, as they consider it is a person’s sex at birth, rather than the sex assigned to them at birth which may motivate perpetrators of hate crime.

One organisation highlighted what they saw as the importance of clear guidance being produced on how the characteristic of sex interacts with other characteristics covered by the 2021 Act.

Individual respondents

115 of the 326 individual respondents who responded to this question used the comments box to provide reasons for their views. Of those who were content with the provision and provided comments, a majority specifically welcomed that ‘sex’ was defined as referring to biological sex.

Of those who said they were content with the interpretive provision relating to the characteristic of sex, a small number stated that they thought that the explanatory note should refer to a person’s “sex at birth” rather than their “sex assigned at birth”.

Those respondents who were not content with the interpretive provision and provided comments set out a range of reasons for their views. A number considered that the term “biological sex” was either ill-defined and failed to appropriately address how the provision applies to people with variations in sex characteristics, or else stated that they disagreed with the adoption of the definition of sex in the Equality Act 2010, which some respondents stated was ‘divisive’.

A number of respondents said that they thought ‘sex’ should be defined by reference to gender identity rather than ‘biological sex’ or ‘sex at birth’. A small number said that this would be more inclusive because a trans person can experience hatred based on prejudice against their gender as well as their transgender identity and this would not be covered by either the transgender identity aggravation or the aggravation relating to the characteristic of sex.

A small number of individual respondents who said that they were not content with the provision raised a number of other concerns. A very small number stated that they were opposed to the 2021 Act as a whole, which they thought should be repealed, and a very small number of respondents also stated that they thought that the provision framed women as victims and men as perpetrators. A very small number of respondents also used the comments section to express their view that there is no such thing as ‘gender’ as distinct from ‘sex’.